Preparing for a fight!

T

texasgs

PEB Forum Regular Member
Registered Member
These past two days of research into my husbands discharge from the Marines has left me baffled and ready to proceed with the Disability Review Board request once we receive his rating from the VA. To recap:

Army Vet after he got out he went into the Marines. WHILE in the Marines he was discharged 2 months in (ELS-Uncharacterized Discharge). Also noted on his DD-214 it states "CONDITON NOT A DISABILITY" which confuses me. He never had these issues! What further confuses me is his discharge physical & medical records from the Marine sick call visits

(1) "With proper evaluation SNR was sent to MRP where he was diagnosed with bilateral pes planus, bilateral plantar fasciitis, and bilateral calcasear. Medical further states that SNR's condition is unlikely to change"
(2) Reason Processed: MEDICAL
(3) the factual basis/bases for this recommendation: DUE TO YOUR MEDICAL CONDITION

i also looked at his medical exam upon entry. It lists "pes planus" 2-MODERATE A-Asymptomatic
However, on one of his sick call records it states:
"Pes Planus" SEVERE- SYMPTOMATIC moderately

doesnt that mean it got WORSE according to their records? Also, prior to those 2 months of service---he was in the army for 3. He also had stress fractures, back pain, and knee issues (all documented)
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I have also attached a picture of the bottom of his DD214.

SEPARATION: CONDITON NOT A DISABILITY
SEPARATION CODE: JFV1
REENTRY CODE: RE-3P

Now I sit even more ignited! After researching I see that JFV1 is - (Discharge because of a physical condition which is not disabling. involuntary, USMC ) while RE-3P means
(Physical disability (includes discharge and transfer to TDRL). Obesity. Motion sickness. Disqualified for officer candidate training.)

There is another code
RE-3G- Condition (not physical disability) interfering with performance of duty.


So....if the "CONDITON IS NOT A DISABILITY" why does the reentry code contradict that?? Now....I'm ready for the fight! Any advice appreciated!!!!
 

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@Ed Mercanti will be able to advise some of the specifics if you send him a Private Conversation.
 
If a medical condition existed at the time of enlistment must wasn't discovered until after the individual entered on active duty, but before 6 months of active duty, the individual can be discharged without disability benefits. It is because of a medically disqualifying (under procurement standards) condition which is not service connected. While a condition may not have manifested itself before enlistment because of a sedentary lifestyle, it does not mean its service connected. The military service did not aggravate the condition and it will return to normal after the stress of initial entry training ends.
 
Ed Mercanti said:
If a medical condition existed at the time of enlistment must wasn't discovered until after the individual entered on active duty, but before 6 months of active duty, the individual can be discharged without disability benefits. It is because of a medically disqualifying (under procurement standards) condition which is not service connected. While a condition may not have manifested itself before enlistment because of a sedentary lifestyle, it does not mean its service connected. The military service did not aggravate the condition and it will return to normal after the stress of initial entry training ends.
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prior to enlistment into the Marines (2002) he was in the Army from 1998-2001 (3 years) and this condition was never noted. As stated in DoDI 1332.38 E3.P2.5. (Members with a Nonwaivered Pre-Existing Condition) E3.P2.5.1 states:

The medical impairment is identified prior to or within 180 days of the member's initial entry on active duty or active duty for training or full-time National Guard duty.
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As stated above...his initial entry was 3 years before he entered the Marines. Is that the wrong way to interpret that @Ed Mercanti?
 
When was DoDI 1332.38 E3.P2.5 written? Before 2002? Or after?

I have boxed up my regulations since I decided not to stay in the business, but ELS used to be judged on the first 180 day of an enlistment. Later that definition was changed to say the first 180 days of active duty.

Under todays standards he could not have been given an entry level status separation. So the characterization of service could be argued based on current standards.

But the nature of the separation would remain intact. What we have is a soldier who enlists in a different service and is required by that service to undergo initial entry training. When a soldier in initial entry training cannot complete the training because of a physical condition which is not disqualifying for retention (a normal, yet arguable prerequisite for processing under the DES), the service has to do something to separate the individual because that person is of no use to the service.
 
Ed Mercanti said:
When was DoDI 1332.38 E3.P2.5 written? Before 2002? Or after?

I have boxed up my regulations since I decided not to stay in the business, but ELS used to be judged on the first 180 day of an enlistment. Later that definition was changed to say the first 180 days of active duty.

Under todays standards he could not have been given an entry level status separation. So the characterization of service could be argued based on current standards.

But the nature of the separation would remain intact. What we have is a soldier who enlists in a different service and is required by that service to undergo initial entry training. When a soldier in initial entry training cannot complete the training because of a physical condition which is not disqualifying for retention (a normal, yet arguable prerequisite for processing under the DES), the service has to do something to separate the individual because that person is of no use to the service.
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This pub is dated 1996.
 
Here is my response which I initially posted to texasgs' post on VBN: http://vets.yuku.com/topic/110653/Uncharacterized-discharge-medical-issues-previous-honorab

The 180 day rules is misunderstood and widely abused by the services.

Mike


My take is that the Marines definitely screwed him. Yes, he should apply for VA compensation. Beyond that, he should have been submitted for a MEB/PEB. He should take the case to a Disability Review Board under 10 USC 1554 (more on that later) and fight for DoD disability compensation.

He was a marine (or at least a marine recruit) eligible for DoD disability compensation from day one of his enlistment (See 10 USC 1201). There is an often used myth that a member needs 180 days to be eligible for DES processing. This myth is often used by the Services to get rid of new entrants who develop disabling conditions early in their training. A more obvious example is if he was run over by a tank on day one of boot camp. Certainly he would be eligible for DES processing if that happened.

Here is the key provision from DoDI 1332.38 on the 180 day rule:

E3.P2.5. Members with a Nonwaivered Pre-Existing Condition.

Service members who are identified with nonwaivered medical conditions or physical defects that existed prior to service may be administratively separated without referral into the DES when the medical condition meets all the criteria listed in subsections E3.P2.5.1. through E3.P2.5.4., below:

E3.P2.5.1. The medical impairment is identified prior to or within 180 days of the member's initial entry on active duty or active duty for training or full-time National Guard duty. (His initial entry onto active duty was more than 3 years before with the Army)

E3.P2.5.2. The medical impairment does not meet accession standards under DoD Directive 6130.3 (reference (e)). (It was identified on his entrance physical but obviously designated to meet accession standards or they would not have allowed him to enlist.)

E3.P2.5.3. The impairment is not a condition that is cause for referral to the PEB under enclosure 4 or Service supplemental medical standards. (His condition was required to be referred to the DES. See paragraphs E4.1.3. and E4.2.2.4. of DoDI 1332.38)

E3.P2.5.4. Service aggravation of the impairment has not occurred. If the Service member contests the “not Service aggravated” determination by the physician recommending separation, the member may request the MEB be forwarded to the PEB for review. (His condition was service aggravated per the notes of the USMC stating the condition was worse upon discharge. Even if the USMC had stated it was not worse he should have been allowed to take it to a MEB/PEB).

Before he can be separated for such a condition he needs to meet all four criteria and yet he did not meet even one.

The Marines decided to state his condition was “condition not a disability”. For ever and a day the Navy and USMC have bastardized this provision to eliminate wounded warriors without having to pay them DoD disability benefits. I have had several such cases of this just this year involving marines and sailors with 6-11 years of active duty who were told they would be administrative discharged for a “condition not a disability”. I will post in this thread my email to Admiral Nathan (Navy Surgeon General) on this issue as it explains the details of this abuse.

Now, back to the Disability Review Board. The Disability Review Board (10 USC 1554) allows a member to challenge a medical discharge without benefits. It used to be a board limited to officers but now enlisted can apply as well (thanks to yours truly). There is a 15 year application window from the date of discharge. Here is a good case example.

Last year I assisted a marine who in 2003 was discharged for a condition deemed EPTS without aggravation. He had a genetic condition that made him vulnerable to pressure palsies (HNPP -http://en.wikipedia.org/wiki/Hereditary_neuropathy_with_liability_to_pressure_palsy)

He had no symptoms prior to entry and did fine the first 6 weeks or so of basic training. However, they began doing long road marches with 100lb packs as well as marksmanship training that involved tightly wrapping the sling around the arm. This permanently damaged the nerves in arms and shoulders. When he complained of numbness, his DI thought he was slacking off and gave him some intense “motivation training” involving lots of push-ups and upper body strength events. This further damaged the nerve in his arms. The paralysis exists still today.

The USMC did run him through a MEB/PEB but stated the condition preexisted service w/o aggravation and ordered him discharges w/o disability benefits. The VA immediately rated the condition at 40% disabling. Last year we took his case to the first ever enlisted Disability Review Board. We centered the argument on the fact that while he was genetically predisposed to such nerve damage, it did not occur until he was on active duty. And, even if the condition preexisted service, it was clearly aggravated in boot camp. His disability Review Board reversed the EPTS w/o aggravation finding and granted him a permanent disability retirement effective from the date of his discharge in 2003. I will locate our filing for this board and post it to this thread.

If I were him, I would immediately file for VA compensation. Once the VA rates the condition, I would use that evidence as the basis for filing with the Disability Review Board.

Mike
 
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Thank you again @maparker! You are the reason I took a second look! We've filed the VA claim and will await the decision before proceeding with the DRB claim.
 
I agree with the analysis by maparker 100%. My only concern/disagreement is the use of the Disability Review Board to challenge the error. (Reasonable folks could disagree on this, so I don't think it is a question of there being only one "right answer).

I think that, as a baseline, any mechanism that works to fix or address a problem is by definition an effective course of action. My concern really has to do with what happens if the Disability Review Board does not work to fix the problem? Well, you would then have to go to the Board for Correction of Military Records/Board for Correction of Naval Records to raise the issues again. (In cases where a member never had a PEB prior to separation, this is a predicate for going to Federal Court....it would be possible for someone who went to PEB and then went to disability review board). So, at that point, you have to go to another layer of administrative review. This would seem to just add in more time to get another look at the case. (Another point, that may or may not be a factor is that the BCMR/BCNR has a reading room with published decisions-though redacted to remove identifying information, that gives a larger number of potential cases to cite as a reason that relief should be given...this gets into a complicated issue, the "precedential" nature of BCMR/BCNR decisions on issues. Without going into a full blown discussion of this, there are federal court decisions that speak to it being arbitrary and capricious if the BCMR/BCNR treats similary situated persons differently if someone cites to an earlier decision of the BCMR/BCNR and the board does not grant relief or explain why they did not).

What gets more worrisome to me is that there is also a huge dearth of cases in the courts that address Disability Review Boards. This is a real simplification and does not go into all of the issues. But, there is a fairly large number of cases in the courts that deal with BCMR/BCNR cases on review. (Though, it may surprise folks, military disability cases represent a very small number of cases, especially when you factor in cases that large percentage of these cases that are filed pro se and are dismissed very early due to lack of jurisdiction). There are very few judicial opinions dealing with Disability Review Boards. Though a court case would have to focus on the errors at the BCMR/BCNR, an issue with that board's findings are likely to implicate the Disability Review Board's findings and the issues raised there. So, you have to essentially attack the BCMR/BCNR as it reviewed the Disability Review Board's actions. It layers the issues that occurred at the lower board on top of what happened at the BCMR/BCNR. (I think PDBR's escape some of the problems because it is a "final" board under the statute and regulations- essentially the same as a BCMR/BCNR for "finality" purposes).

I am dealing with two cases presently in Federal court that deal with preliminary appeals to lower level administrative review boards (one was a discharge review board, the other a disability review board). I think that the cases are made much harder and more complicated by having gone to lower boards rather than BCMR/BCNR first.

In my opinion, if you have to appeal an adverse finding from a Disability Review Board, it is much more complicated to do so- especially if you ultimately end up in court, and I tend to think somewhat less likely to resolve in your favor than if the member went to the BCMR/BCNR first. Given that I don't see any substantial advantage to going to Disability Review Board over going to BCMR, I think the disadvantages outweigh any advantages.

(There is another issue, too- if you fail to raise an issue before an earlier board, there is a possibility that the BCMR/BCNR will claim that you never raised the issue before, and the issue is "waived." The danger is much greater in court- if you do not raise an issue at the appropriate time in the administrative process, you will waive the issue in court. Sometimes, a failure to raise an issue earlier can be remedied by raising the issue before the BCMR/BCNR. BUT- if the BCMR/BCNR finds you waived the issue, you may be in a real pickle...essentially, being precluded from ever getting review of issues that may be correct, but were waived).

Like I said, reasonable folks can disagree on this point.
 
Jason,

The experience we had with Cory McDonald's case makes me favor the Disability Review Board. First, we were able to get the board within about three months from his application. Second, it is a board in which you can make a personal appearance which Cory did. Third, it was way quicker and cheaper than going to the BSCMR or federal court. Within 6 months of Cory contacting me he had his disability retirement. This was critical as it also impacted his GI bill eligibility and the amount he was having to pay for college.

That being said, I knew absolutely we were correct. By asking the right questions, and by requiring the DRB to answer those questions per 10 USC 1222a, the only logical result was granting him disability retirement which they did. Had they not done so, we would have immediately gone to the BCNR (and the press and Congress) for resolution. He was well beyond 6 years since his MEB/PEB in 2003 so federal court was probably not an option.

In texasgs' case, I think the best course is to get the VA rating for the condition. If the VA rating is 20% or less it may not be worth the effort to pursue the issue especially if the severance will be offset by VA.



Mike
 
maparker you are with exceptional intellect. Genius! Your ability to express errors in Corey McDonald's case will transform my life. After I read this I knew I must continue my fight. I am with no law degree, however I do have common sense. Thank you
 
Mike,

I don't mean to say that going to the DRB is not always the wrong choice. It dovetails back with one of my first points, that anything that works is an effective, and therefore, a good choice. (And, in some cases, which may have been the case in Cory McDonald's case, it may be the only option depending on the jurisdictional/statute of limitations issues).

Bottom line, I think that any decision about which avenue to appeal needs to be made by considering all of the facts and circumstances of the case. An additional factor, included in this calculation, would be how far the person wants to fight. I suppose if a baseline decision is made that the person is only going to fight once and accept whatever happens, then that might change the decision. (If you are not going to fight to later boards or in the court's, then the consideration of what happens there is likely moot).

Another issue raised by this question of the advisability/utility of going to DRB over other boards was a point that I touched on, but did not really develop. That is, the issue of "small sample". Given the very small number of these other boards (Discharge and/or Disability Review Boards), I think it is hard to draw conclusions or to see trends overall (which, does not mean that they would not be favorable). It is just that in my analysis, without having some sort of track record or having enough cases to see if there are trends, the outcomes in the aggregate are an unknown, so it makes it somewhat more risky in the ordinary case. There is, on some level, a value to have a track record on decisions to judge things (take the PDBR....I don't have the figures on the tip of my tongue, but, it was shown that the PDBR decisions, even though it was a "new" board, was coming back with grants of relief at a much higher rate than the BCMR/BCNR).

I do have other concerns, that would take more time than I have at the moment to fully explain, with the DRBs not being widely used and the impact of proper processing of cases in the aggregate. That is, if the DRBs ended up "catching on" and are widely used, then I think you may see a greater impact from decisions from that board (as well as appeals of bad decisions that are taken up in court, and therefore, ameliorates some of my concerns). I guess I would sum up my issue here with saying that some of my concerns being based on dearth of cases, should that change, then my opinion would likely change (or at least I would have more information/data to support my concerns, if the data showed a worse outcome). (An overall recurring issue in the military disability law arena is the lack of appeals- which is a necessary predicate to getting court decisions....practices that are blatantly illegal are not routinely appealed, basically giving the miltary a "free pass" and insulating the military from challenges).

Again, I don't mean to suggest that folks should not consider DRB's. I just wanted to chime in that I think there are considerations to be made as to what board or avenue to appeal folks should take into account.
 
If a service member was medically waivered in the service for a medical condition and medical condition/ flared/ surgery/body part lost while serving in the line of duty does DOD law 1332.38/provision 10USC 1207 still apply? Can one apply similar arguement like in Corey Mcdonald's case?
 
Yes....the question is a bit general, i.e., fully developed facts might change the analysis, but, as a base line, yes.
 
Thank you both for your advice , etc. at this time we will await the decision on his VA rating and go from there. Judging by the VA rating schedule his conditions combined should warrant at least 30%, but we shall see. Again thanks for all that you all do and I will update you once the rating comes in.
 
Jason,

Concur. The best course of action is always situational dependent.

Mike
 
Well, it appears that my thoughts have been dismissed in this, and that's quite alright. I sincerely hope texasgs is successful.

But I think she will have a better chance in court than she will with the BCNR. While the BCMRs/BCNR have medical and legal sections to provide advisory opinions, the analysts writing the cases are not JDs or MDs. Most are retired military.

And that's where common sense is applied. Disability separations were created to compensate a soldier/sailor/airman for the loss of a career.

And in a case where an individual enlists as prior service in another branch of service, and must undergo initial entry training to fulfill that enlistment, they must be able to be able to physically complete that training.

Normally the physically unfitting conditions which preclude the completion of that training are EPTS (but could be said to be service aggravated as successfully argued by Jason in the case he cited) or conditions which are not disqualifying for retention.
 
Ed Mercanti said:
Well, it appears that my thoughts have been dismissed in this, and that's quite alright. I sincerely hope texasgs is successful.

But I think she will have a better chance in court than she will with the BCNR. While the BCMRs/BCNR have medical and legal sections to provide advisory opinions, the analysts writing the cases are not JDs or MDs. Most are retired military.

And that's where common sense is applied. Disability separations were created to compensate a soldier/sailor/airman for the loss of a career.

And in a case where an individual enlists as prior service in another branch of service, and must undergo initial entry training to fulfill that enlistment, they must be able to be able to physically complete that training.

Normally the physically unfitting conditions which preclude the completion of that training are EPTS (but could be said to be service aggravated as successfully argued by Jason in the case he cited) or conditions which are not disqualifying for retention.
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@Ed Mercanti, I don't think your thoughts were dismissed- though, perhaps the point of service incurrence/aggravation and entry level separation was not discussed fully. I really didn't dive into that issue because of my many experiences with the Navy/USMC inappropriately classifying conditions as not being disabilities when they clearly are (this is usually not an issue with them calling things like personality disorder, bed wetting, sleep walking, etc., which are covered as "not disabilities" in the DoDI, but rather the Navy/USMC taking clear disabilities, and making a baseline determination- prior to a PEB (or in a case that I am currently fighting in Court, they said it was not unfitting at an informal PEB, denied the member a formal PEB, then, within 30 days, separating the member due to their condition not allowing for world-wide and ship board service....but, they for years argued that this made the conditions "not a disability,"...they have finally admitted they were wrong on this and now, we are just fighting out the remedy). Point is, with the Navy/USMC, they blatantly separate people for disabilities, but claim they are not disabilities.

All of that said, I agree with you on the court vs. BCMR/BCNR route as being more likely to succeed. In some cases, you have to go to BCMR/BCNR first (and, I think that is the case with texasgs, from what I read).

There are some issues that I think are very amenable to getting corrected at the BCMR/BCNR. But, I tend to think you have to have a "favorable appearing case," that is the facts and, as you suggested, common sense leaning towards a grant of relief. I tend to think that legal based arguments, or when the applicant is not "pristine" (i.e., may have had Art. 15's, or failed APFT/HT/WT issues, etc), face a tougher road at the BCMR/BCNR. Further complicating things, a large number of court cases end up with a remand to the BCMR/BCNR....however, oftentimes with instructions or factual findings from the court that constrain the BCMR/BCNR or at least making it harder for them to rule against the applicant (additional issue, with a remand from the court, if the applicant is successful, they have the chance for getting an award of attorney's fees....which are, of course, not available if you apply directly to BCMR/BCNR).
 
Furthermore, there are a ton of issues that "lay beneath the surface" having to do with economic incentives, attorneys fees generally (ever think why you can't turn on the TV and not see an add for mesothelioma claims, phen-fen, or, for that matter, accident claims, but you have never seen an ad for a military disability attorney on TV? It all has to do with economics....you can bet that if there were big money to be had on the claimants side, you would see more attorneys in this practice area, and if there were even more money than that, you would see a fix to a lot of issues). There are economic incentives that work against claims on some many levels and so many parts (including incentives for the government to give a wrong low result, for military personnel within the system to maintain the status quo, and for attorneys not to get into this area of law in the first place).
 
But the nature of the separation would remain intact. What we have is a soldier who enlists in a different service and is required by that service to undergo initial entry training. When a soldier in initial entry training cannot complete the training because of a physical condition which is not disqualifying for retention (a normal, yet arguable prerequisite for processing under the DES), the service has to do something to separate the individual because that person is of no use to the service.[/quote]

Ed,

I have disagreement with the bolded part above. If the physical condition prevents training, then it fails retention standards. The only exceptions are the "conditions not disabilities" listed in Enclosure 5 of DoDI 1332.38. This is not one of them. Enclosure 4 DoDI 1332.38 provides conditions and degree of impairment that drives entry into the MEB. Here are three provisions from Enclosure 4 of DoDI 1332.38 that are on point:

E4.1.1. This enclosure provides a listing, mainly by body system, of medical conditions and physical defects which are cause for referral into the Disability Evaluation System (DES).
E4.1.3. Any condition that appears to significantly interfere with performance of duties appropriate to a service member's, office, grade, rank or rating will be considered for MEB evaluation.
E4.2.2.4. Feet: Any condition that prevents walking, running, or normal weight bearing.
​
Because the marine's feet meet the criteria above, he was required to be submitted to a MEB. The MEB and PEB could have tried and stated the condition was EPTS w/o aggravation. My position is that the condition was not EPTS w/o aggravation for two key reasons. First, the condition apparently developed during a previous period of active duty. Second, even if the condition was EPTS, it was permanently aggravated in service. The condition was noted on his marine entry physical as moderate (an apparently meet accession standards as they allowed him to enlist). After two months of marine boot, the marines stated the condition severe and that the condition would not change. Apparently to this day some 11 years latter the problems with his feet continue. It was permanently aggravated.

I don't disagree with you that a BCMR attempt might not be successful because the BCMR has their own way of looking at things that don't always align with law, regulations and instructions (Numerous cases upholding non VASRD disability ratings comes to mind). That is why I lean heavily on the Disability Review Board option in such cases. It is an in person board, (which is rarely granted by the BCMR) and that is very is powerful. The DRB, by law, must have two doctors which adds medical expertise. Also, the BCMR presumes government regularity where as the DRB must look to see if all laws, regulations and instructions were properly followed. If one goes in knowing the rules they can ask the right questions and demand the answers to the questions. If the issues are not addressed by the board, it becomes very ripe for court action not to mention press and congressional involvement. That is why I always obtain a recording of the actual board.

Mike
 
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